8 Key excerpts on "UK Law"

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  eBook - ePub

  Business Law

  • Douglas Smith, Richard D Lawson, A.A Painter(Authors)
  • 2012(Publication Date)
  • Routledge

    (Publisher)

  1    The English legal system

   

  Introduction

  The term ‘legal system’ has no specific definition. It is, however, generally understood as referring to the ways in which laws are made in a jurisdiction, the types of law which are made, the court structure, and the role and function of various personnel. This is the approach which is adopted in this chapter.

  Although there are many areas where the position described is the same throughout the United Kingdom, this chapter is specifically devoted to the position in England and Wales.

  Objectives

  The first objective will be to make clear the role of Parliament in making laws, and the extent to which Parliament is sovereign.

  Account will also be given of other sources of law, notably that branch of the law normally referred to as the ‘common law’. It will also be explained that, whatever its source, the law can be subdivided into various categories.

  Given the position of the United Kingdom as a member of the European Union, a further objective will be to explain how European Union law is made, and its relationship to law having its origin solely within the United Kingdom.

  Account will also be given of the court structure, the importance attached to previous court decisions within the English legal system (the so-called ‘doctrine of precedent’) of various legal personnel and of the legal profession.

  Key concepts

  • Law as derived from legislation and judge-made law
  • Differing categories of legislation — Acts of Parliament and subordinate legislation
  • How Acts are made
  • Powers of House of Lords
  • Differing categories of Act
  • Equity as distinct from common law
  • Distinction between civil and criminal law
  • Categories of civil law
  • Criminal and civil courts
  • The doctrine of precedent
  • Solicitors and barristers
  • Law Officers
  • The relationship between domestic law and European Union (EU) law
  • Supremacy of EU law.

  Legislation

  By ‘legislation’ is meant law which is made by, or under the authority of, Parliament. Legislation is subdivided into Acts of Parliament, which is law made by Parliament directly; and subordinate legislation, which is law made under the authority of Parliament, usually expressed in an Act of Parliament.

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  English Legal System

  • Ryan Murphy, Frances Burton(Authors)
  • 2020(Publication Date)
  • Routledge

    (Publisher)

  legal or common sense meaning of the words used. It is, therefore, important to deal with some basic terminology first before considering the detail of the system that is the subject of this book. It is here that we start to see some of the differences between the term ‘law’ and the term ‘legal system’.

  The United Kingdom is shorthand for the United Kingdom of Great Britain and Northern Ireland. Great Britain is comprised of England, Wales and Scotland and this is then ‘united’ with Northern Ireland to form the UK. Of itself, and for historical reasons,62 the UK does not have a single legal system but rather is a collection of legal systems with certain shared institutions (such as the Supreme Court63 and the Westminster Parliament). For our purposes there are five different forms of ‘law’ that are relevant – the law of the UK (that applies across all of the constituent jurisdictions), Scots law, English and Welsh law, Welsh law64 and Irish law. There are also international laws that will be discussed where relevant throughout the remainder of the text.

  62 The UK was formed out of a series of Acts of Union with Scotland (1707), Ireland (1800) and Wales (1536–1543).

  63 Which is the highest civil court for all civil cases in the UK and the highest criminal court for England and Wales and Northern Ireland.

  64 Legislation passed under the devolved authority of the Government of Wales Act 2006.

  There are then three distinct legal systems in operation within the UK: that of England and Wales, Scotland and Northern Ireland.

  Taking things further – the Commonwealth, British Overseas Territories and Crown dependencies

  The website that accompanies this text provides an opportunity to explore how the various legal systems of the UK interact with the nations of the Commonwealth, the British Overseas Territories and the Crown dependencies. Although many of these nations and territories now have their own fully developed legal systems, it is useful to understand the broader picture and to consider the process and challenges of sharing institutions whilst seeking to develop a sense of independent identity.

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  British Civilization

  An Introduction

  • John Oakland(Author)
  • 2019(Publication Date)
  • Routledge

    (Publisher)

  7The legal system

  • Legal history
  • Sources of British law
  • Court structures in England and Wales
  • Civil and criminal procedure in England and Wales
  • Law and order
  • The legal profession
  • Attitudes to the legal system and crime
  • Exercises
  • Further reading
  • Websites

  Legal structures have played a central part in British civilization for many centuries. Initially, leaders or monarchs, and then Parliament created the law; lawyers and the courts have serviced it; and all citizens are subject to it. It has been influenced by social conflict, political struggle and constitutional change. This chapter examines its history, the main elements that comprise it today, and the problems that it faces.

  Law and order, and the actions of the legal system are of concern to the British people and affect individuals at different levels in their daily lives. Legal issues regularly appear in opinion polls about the state of the country, and include the need for accurate figures of crime offences, anti-social behaviour, violence on the streets, yobbishness, security and terrorism issues, cybercrime and the monitoring of communications systems, and cuts in police forces. Opinions differ on whether the legal system has been able to deal effectively with these concerns.

  Britain does not have a common legal system. Instead, there are three separate elements: those of England and Wales, Scotland, and Northern Ireland. These sometimes differ from each other in their laws, procedures and court names. Following devolution, some laws are applicable only to individual devolved nations, although UK Parliament legislation on reserved matters still applies to all of Britain.

  To simplify matters, this chapter concentrates on the largest element: that of England and Wales, with comparative references to Scotland and Northern Ireland. The Northern Irish legal system is similar to that of England and Wales. But Scotland has historically had its own independent legal apparatus.

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  Galbraith's Construction and Land Management Law for Students

  • Carrie de Silva, Jennifer Charlson, Carrie de Silva, Jennifer Charlson, Carrie de Silva, Jennifer Charlson(Authors)
  • 2020(Publication Date)
  • Routledge

    (Publisher)

  Egerton v Harding (1975).

  Sources of law

  The two main sources of law in our system today are legislation (laws made or approved by Parliament) and judicial precedent (binding decisions of judges). Between 1 January 1973 and 31 January 2020 both of these sources of law had to take account of the fact that the United Kingdom (UK) was a member of the European Union (see Chapter 2 ). Note, also, the impact of the Human Rights Act 1998 (HRA) (see later in this chapter).

  New legislation

  Law-making authority is vested in the Crown and Parliament, although the role of the Crown is now almost entirely formal. Our complex modern society requires rule-making techniques which are capable of coping with economic, social and welfare problems. Parliament, consisting of the House of Lords and the House of Commons, is said to be supreme, but in practice its ability to make rules must be viewed subject to a number of limitations. By virtue of the European Communities Act 1972, a new element of European Community law was introduced into our system. European Community law took precedence over the national law of any member state. This, therefore, imposed a limit on the ability of Parliament to make whatever laws it wished. If English law was found to conflict with European Community law, the Community law prevailed. There are transition provisions prevailing from 1 February 2020 until a final status is reached and, for commercial and policy reasons, European legislation is likely to inform and impact national legislation thereafter, although legal sovereignty will be within the UK.

  The UK is a signatory to the European Convention on Human Rights and is obliged by international law to ensure that English law does not contravene the Convention. This is separate to European Union membership. Under the HRA, the main provisions of the European Convention on Human Rights became part of UK Law and thus enforceable through the English courts. Other factors that would limit the power of Parliament are the existence of an opposition party, or parties, whose duty is to seek to curb or limit government proposals; Parliamentary question time which is held daily, when ministers, including the Prime Minister, must justify their activities; the two-chamber system whereby the House of Lords can at least delay the passing of legislation and public opinion, pressure groups, freedom of speech and publicity through the media. Once laws are enacted by Parliament, the interpretation of those laws is carried out by the judges in the courts. If Parliament has passed a law which is seen to be too harsh or too extensive in its application, it may be possible for the judges, by restrictive interpretation of the words of the statute, to limit the scope of the new rule.

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  Media Law for Journalists

  • Ursula Smartt(Author)
  • 2020(Publication Date)
  • Routledge

    (Publisher)

  The main aim of this first chapter is to promote greater understanding of the English justice system as a whole. You will learn to understand how the civil and criminal laws operate in practice by looking at the various agencies and key personnel involved in the civil and criminal processes, such as Her Majesty’s Courts and Tribunals Service (HMCTS) and the Crown Prosecution Service (CPS). The criminal process is probably the most interesting to readers of the popular press. Next in line in the popularity stakes might be a defamation action (such as a libel case) heard in the High Court, followed by reporting of an industrial action in an employment tribunal (ET) or in a coroners’ court of a sudden and unexplained death. The law in Wales is the same as that in England and so is referred to here as ‘English law’. However, the law in Scotland differs considerably in some respects from that in England and Wales and at times court procedures and defamation actions are different in both Scotland and Northern Ireland. This will be pointed out to you throughout this book where necessary.

  This chapter introduces you to English and European legislation and the various courts and legal institutions involved. It presents the basic rules regarding the UK Parliament, sources of law and the court structure (civil and criminal). It is important not to confuse human rights (Convention) law with the laws of the European Union (EU); neither must the European Court of Human Rights (ECHR) in Strasbourg be confused with the Court of Justice of the European Union (CJEU) in Luxembourg. Human rights law and EU law are strictly separate and so are the courts.

  See Chapter 2.4

  1.3 The UK Constitution and sources of law

  A constitution is a set of rules that govern an organisation. Sir Ivor Jennings (1903–1965), one of the most prominent constitutional law scholars, described a constitution as a ‘document in which are set out the rules governing the composition, powers and methods of operation of the main institutions of Government, and the general principles applicable to their relations to the citizens’ (Sir Ivor Jennings, The Law and the Constitution

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  eBook - ePub

  English Legal System

  An Emerald Guide

  • (Author)
  • 2015(Publication Date)
  • Straightforward Publishing Digital

    (Publisher)

  3

  Parliament and Acts of Parliament

  The main legislative body in the United Kingdom is Parliament. Laws passed by Parliament are known as Acts of Parliament, or statutes. This source of law is usually referred to as statute law. In addition to Parliament, power is delegated to government ministers and their departments to make detailed rules and regulations which supplement Parliament. These regulations are delegated legislation and are called statutory instruments.

  Parliament consists of the House of Commons and the House of Lords. Both houses must be in favour of a bill, vote in its favour, before it can become law. The people who sit in the House of Commons are elected Members of Parliament, representing their constituencies who elected them.

  The House of Lords is somewhat different consisting of hereditary peers, life peers, judges who are law lords and the most senior bishops in the Church of England. The Lords has, in the past few years, undergone radical reform with the process still continuing. Essentially, the process whereby hereditary peers dominated the Lords has ended with a more democratic approach being sought.

  Judges in the Supreme Court

  As discussed, the Supreme Court is the most senior court in England and Wales. Only the 12 Law Lords are allowed to sit in this court

  Factors influencing law making at a government level

  When they are formed, Governments have programmes of reforms. These are set out in government manifestos at election time and reinforced during the Queens speech at the opening of Parliament. Basically, most new legislation emanates from government policy.

  There are other influences at play which affect what laws are enacted. One such major influence is European legislation. New Acts are passed to bring our law in line with European legislation. Other outside influences include proposals for law reform put forward by law reform agencies, commissions or enquiries into the effectiveness of existing law. Specific events can also lead to changes in the law, events such as the massacre of young children at a school in Dunblane in 1996 which resulted in Firearms Legislation in 1997. Another outside influence is that of pressure groups who cause government to reconsider law in specific areas. One such instance was in 1994 when the government reduced the age of homosexual consent from 21 to 18. In 2000, this was further reduced to 16.

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  Organisations and the Business Environment

  • Tom Craig, David Campbell(Authors)
  • 2012(Publication Date)
  • Routledge

    (Publisher)

  Common laws, which comprise the majority of laws in most modern democracies, are the result of (in the case of UK common laws) over 800 years of legal interpretation by the learned members of the judiciary. Unlike statute law, common law tends to evolve and change over time as members of the judiciary reinterpret ancient forms of action in the light of changing social and legal environments. It is generally understood, for example, that murder is highly antisocial behaviour. For this reason, it need not be enshrined in statute – it is a matter of common law. When murder was first punishable by the British judiciary in the dark recesses of medieval history, the most frequent mechanism of the crime was probably by the use of bare hands, clubs or bows and arrows. When however, the gun was invented, the judiciary would extrapolate the spirit of the common law of murder and find gun murderers guilty in the same way as those who had killed by more primitive methods. If murder was the subject of statute law, the statute would have to be revised by the legislature to account for the introduction of a new means of carrying out the offence. Under common law, the fact that murder had been punished in earlier legal cases meant that the judiciary merely had to refer to these, and adapt the law to account for a new means of carrying out the crime. This brings us to an important principle in common law – that of judicial precedent. According to this principle, current cases in matters of common law can be assessed in the light of previously decided cases. If, for example, a case concerned a civil matter where two people disagree over whether a tree should be chopped down, they could scour the annals of previously decided cases and, upon finding a precedent, could appeal to that precedent to decide their disagreement. 14.2 The Judiciary Distinctions in the Judiciary The British judiciary, comprising the complicated system of courts, is divided up according to two broad distinctions

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  Law and Ethics in Nursing and Healthcare

  An Introduction

  • Graham Avery(Author)
  • 2016(Publication Date)
  • SAGE Publications Ltd

    (Publisher)

  1 The UK Legal System

  Learning Objectives

  At the end of this chapter, you will:

  1. Acknowledge the distinction between the criminal law and the civil law.
  2. Be aware of the court system.
  3. Have an understanding of the common law and the doctrine of judicial precedent.
  4. Be able to locate case law and legislation and understand the system of citation.

  1 Introduction

  At his best, man is the noblest of all animals; separated from law and justice he is the worst. (Aristotle, Politics (Book One: Part II))

  There are many pleasant fictions of the law in constant operation, but there is not one so pleasant or practically humorous as that which supposes every man to be of equal value in its impartial eye, and the benefits of all laws to be equally attainable by all men, without the smallest reference to the furniture of their pockets. (Charles Dickens, Nicholas Nickleby)

  These two quotations represent the polarity of opinions concerning the law. The first argues that humankind would quickly degenerate into anarchy without its restraining influences; the second contends that ‘justice’ within the system is dependent upon one’s wealth and status. There are enough examples and anecdotes to support either of these two positions, but most would agree that some form of legal system is necessary if society is to thrive. This is true of the most primitive of cultures, but the UK legal system has developed over many centuries, and, in the process, has become increasingly sophisticated and complex. My purpose, therefore, in this chapter is not to give a detailed outline of this system, but to illustrate a couple of key distinctions in the hope that the central concepts will be clarified.

  We should begin by asking why a book such as this should feel the need to open with a chapter on the legal system. The answer, quite simply, is that what follows will become more intelligible if there is an understanding of the legislative and court process. The position is a little complicated by virtue of the fact that there are technically three legal systems in the UK (England and Wales, Scotland, and Northern Ireland), although there are significant overlaps between the three. The UK Parliament is the primary source of legislation for all three jurisdictions, but the Scotland Act 1998 and the Northern Ireland Act 1998 have granted these two countries powers to create laws that are specific to them. Wales also has some powers of this nature (since 2007), but its legal system is fundamentally the same as that of England. One final point to make before discussing the key distinctions is that, self-evidently, healthcare professionals are bound by the same laws as any other citizen in the land. In addition, however, they are subject to professional codes (see Chapter 3

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